TALON STORAGE SOLUTIONS END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (“Agreement”) CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE AND ACCOMPANYING DOCUMENTATION (“Software”). BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN AND DO NOT USE THE SOFTWARE. YOUR RIGHT TO RETURN THE SOFTWARE EXPIRES 30 DAYS AFTER YOUR PURCHASE AND APPLIES ONLY TO THE ORIGINAL PURCHASER.
Software License. Subject to the terms and conditions of this Agreement and payment of the applicable license fees, Talon Storage Solutions, Inc. and its suppliers grant to you (“End User”) a non-exclusive, non-transferable license to use the Software in object code form solely for the purpose of operating the FAST appliance on which the Software runs and solely on the number of appliances for which End User is licensed to use the Software. In addition, End User understands and agrees that the number of individual users permitted to have simultaneous access to a copy of the Software at any given time may not exceed the number of concurrent users authorized by the license purchased by End User for that copy of the Software. End User may make such backup copies of the Software as may be necessary for End User’s lawful use, provided End User affixes to such copies all trademark, copyright, patent, and notices of other proprietary rights that appear on the original.
Limitations. Except as otherwise expressly provided in this Agreement, End User shall have no right, and End User specifically agrees not to, and not to permit third parties to: (i) modify, adapt, change, enhance or create derivative works based upon the Software; (ii) copy, or otherwise reproduce the Software in whole or in part; (iii) decompile, translate, reverse engineer, disassemble or otherwise reduce the Software to human-readable form; (iv) use the Software on any in excess of the maximum number of appliances; or v) remove, modify or otherwise tamper with any notice or legend on any labeling on any physical media containing the Software. End-User’s rights in the Software will be limited to those expressly granted herein.
Upgrades and Additional Copies. For purposes of this Agreement, “Software” shall also include any upgrades, updates, bug fixes or modified versions (“Upgrades”) provided to End User by Talon Storage Solutions or an authorized distributor, along with any backup copies of the Software, and for which End User had paid the applicable license and support and maintenance fees. Notwithstanding the foregoing, End User acknowledges and agrees that Talon Storage Solutions and its resellers and distributors shall have no obligation to provide any Upgrades. If Upgrades or additional copies of the Software are provided, End User acknowledges and agrees that it has no license or right to use such additional copies or Upgrades unless End User, at the time of acquiring such copy or Upgrade, already holds a valid license and the corresponding software keys to the original Software for the applicable number of copies, and is subject to a then-current Software support and maintenance program with Talon Storage Solutions or its authorized distributor.
Third Party Software. The Software may contain third party software which requires notices and/or additional terms and conditions. When such third party software is included in Software, required third party software notices and/or additional terms and conditions will be listed at http://www.talonstorage.com/thirdparty and are made a part of and incorporated by reference into this Agreement. By accepting this Agreement, you are also accepting the additional terms and conditions, if any, set forth therein.
Support. Technical Support may be provided on either a time and material basis or under the terms of a separate Maintenance and Support Agreement.
Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TALON STORAGE SOLUTIONS PROVIDES THE SOFTWARE “AS IS” WITHOUT WARRANTY OF ANY KIND. TALON STORAGE SOLUTIONS DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT END USER WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TALON STORAGE SOLUTIONS AND ITS SUPPLIERS, DISTRIBUTORS, AND RESELLERS DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Limitation of Liability. End-User acknowledges that the Software is not designed, manufactured or intended for use in connection with the design, construction, maintenance, and/or operation of any system where a failure of such system could result in a situation that threatens the safety of human life. Except as otherwise provided herein, Talon Storage Solutions shall not be liable to End-User, in whole or in part, for any claims or damages arising from such use, or resale to End-User by a third party for such purposes, and End-User agrees to indemnify, defend (with counsel approved in writing in advance by Talon Storage Solutions) and hold Talon Storage Solutions harmless against any claims for cost, damage, expense (including reasonable attorneys’ fees) or liability arising out of or in connection with any such use.
IN NO EVENT WILL TALON STORAGE SOLUTIONS OR ITS SUPPLIERS, RESELLERS, OR DISTRIBUTORS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF TALON STORAGE SOLUTIONS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall TALON'S OR its suppliers’, RESELLERS’, OR DISTRIBUTORS’ total liability to End User, whether in contract, tort (including negligence), or otherwise, exceed the price paid by End User. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO END USER.
Proprietary Rights. End-User acknowledges that the Software is the proprietary/confidential information of Talon Storage Solutions or its suppliers and any unauthorized disclosure to a third party constitutes a material breach of this Agreement. The Software, including all intellectual property rights therein, is and will remain the sole and exclusive property of Talon Storage Solutions or its suppliers.
Term and Termination. This Agreement is effective until terminated. End User’s license rights under this Agreement will terminate immediately without notice from Talon Storage Solutions if End User fails to comply with any provision of this Agreement. Upon termination, End User must destroy all copies of Software and the corresponding software keys in its possession or control and certify such destruction in writing to Talon Storage Solutions or its authorized distributor.
Compliance With Law. Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this Agreement. Without limiting the foregoing, End User acknowledges and agrees that the Software, including technical data, is subject to United States export control laws, including the United States Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. End User agrees to comply strictly with all such regulations and acknowledges that End User has the responsibility to obtain licenses to export, re-export, or import the Software.
Restricted Rights. The Software under this Agreement is commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.
General. This Agreement will bind and inure to the benefit of each party’s successors and assigns, provided that End User may not assign or transfer this Agreement, in whole or in part, without Talon Storage Solution's written consent. This Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect; provided, however, that if any limitation on the grant to you of any right herein is held invalid or unenforceable, such right shall immediately terminate. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.